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Alessia Petricone Westwood - Nelligan O'Brien Payne

Enforcing Forum Selection Clauses - How to avoid litigating where you litigate - Many commercial contracts contain a “forum selection clause”. This sets out the court and country that will have jurisdiction over any litigation that may result from a contractual dispute. If a party commences a legal proceeding in a different forum than the one set out in the contract, the other party may attempt to stay the proceedings and enforce the forum selection clause. The Supreme Court of Canada set out the proper test for a stay of proceedings in Z.I. Pompey Industrie v ECU-Line N.V. A party seeking to avoid the forum selection clause must demonstrate that there is “strong cause” to litigate in another forum. The Supreme Court found that parties should be held to their bargain, and the party seeking to set aside a forum selection clause bears the burden of demonstrating that it would not be reasonable or just in the circumstances to require that party to litigate in the agreed forum.The Ontario courts have embraced this standard. Parties to a commercial contract who wish to set aside a forum selection clause must meet a high bar. The Ontario Court of Appeal in Expedition Helicopters Inc v Honeywell Inc., found that the law favours the enforcement of forum selection clauses. A departure from this presumption is only justified in “exceptional circumstances.” The Court of Appeal listed the following non-exhaustive factors that may justify overturning the choice of the parties:1) Fraud or improper inducement;2) The contract is otherwise unenforceable;3) The court of the selected forum declines jurisdiction or is otherwise unable to deal…

Photo : Alessia Petricone Westwood November 13, 2016

Michael Peggs - Marccx Media

Five Ways To Obtain Business Funding In Ottawa - To get off the ground, many small businesses need funding options beyond what they can invest from their own pockets. If you’re starting a business and looking for assistance, Ottawa is the place to be according to Immigration Ottawa. With an estimated $3 billion it total public and private research and development funding spent per year, the city of Ottawa encourages new business in a number of sectors, including wireless, photonics, defense and security, clean technology, life sciences and film, along with digital media and television production. So whether you’re an Ottawa native, or just relocated here, you might be wondering where to begin your funding search. Well the good news is pretty much anywhere you can access internet providers in Canada, or globally for that matter, you can start your search online for opportunities. Here are five convenient avenues to uncover the business financing you’re looking for. Ottawa Chamber of Commerce – Helping small and large businesses for over 150 years, the Ottawa Chamber of Commerce works directly with key influencers, decision-makers, political leaders and government officials. By adding your business to their registry you’re allowing the chamber to promote your business to potential investors, while gaining the ability to work with other chamber members. Keep track of their featured events list for more networking opportunities, and utilize the member affinity programs to save on business expenses such as merchant services, insurance, cyber security, and much more. Invest Ottawa – In addition to providing business seminars, workshops, live networking and mentorship and business advice, Invest Ottawa offers  acceleration and…

Photo : Michael Peggs October 24, 2016

Craig OBrien - Nelligan O'Brien Payne

To Arbitrate or Litigate, that is the Question - Over the past decade, there has been a significant increase in the number of commercial disputes before the Ontario courts. The courts’ capacity to resolve these disputes in a timely manner has declined. Therefore, many potential commercial litigants have been looking for a more efficient system through which to resolve disputes. For better or worse, arbitration clauses have become the go-to mechanism of conflict resolution adopted in many commercial agreements. There are a number of reasons why the speed of litigation has slowed.  Ontarians have been increasingly litigious. Disputes seem to involve more parties. The volume of evidence involved has figuratively exploded as emails have replaced phone calls during contract negotiation, leading to unwieldly  evidentiary obligations. In Eastern Ontario, we are blessed with a highly competent judiciary, and also some truly fantastic arbitrators. From a company’s perspective, the main difference between the two is that the courts control their own process, while the parties are meant to control the arbitration process. Arbitrations thus offer an enviable alternative to litigation. Theoretically, parties control the process by agreeing in advance as to the venue, the applicable laws, the scope of disputes to be handled through arbitration, confidentiality, and the selection of the arbitrator. Disputes can thus either be litigated for years or arbitrated for months. Commercial certainty is thus efficiently maintained, allowing the businesses to disagree, obtain a decision, and move on. Except when they don’t, because sometimes they won’t. The vast majority of arbitration clauses are drafted when the sun is out and the grass is…

Photo : Craig OBrien October 17, 2016

Lisa Robertson - The Hillbrooke Group - Lisa Robertson

Planning for Success - Sponsored Article Last month, Canadians were glued to their televisions, smart phones and tablets watching our Olympic athletes compete at the Rio Games. We all know that it took years of dedicated hard work to get to this high level of performance and to achieve their dreams. But behind their commitment was something more fundamental -- a comprehensive plan designed to maximize their time and effort, and sharpen their focus as they reached for the podium. Elite athletes are not the only ones who understand the importance and benefit of planning. Successful organizations, whether they are public, private or not-for-profit, recognize the value of having a strategic communications plan to help them meet their business goals. A communications plan helps organizations align and support operational goals. It determines how and when communications take place. It establishes priorities, tone, messaging, activities and the brand. It guides the organization’s outreach to key stakeholders. And it provides an evaluation framework to gauge success and identify areas for improvement. Operating without a communications plan is a risky practice for any organization because when objectives are vague, team members can easily lose their focus and activities take place without context. The urgency to post new content to Facebook or develop a news release can mean that high-level communications objectives are overlooked. At the end of the year, you may have an up-to-date website and active social media channels, but you may have made little progress in meeting your strategic business or program goals. When developing a communications plan for your…

Photo : Lisa Robertson September 19, 2016

Libby Robinson - Titus - Libby Robinson

What is Your Data Exposure Risk? - Sponsored Article What would happen within your organization if it was faced with the unenviable process of e-discovery? Calm, quick assembly of relevant information, or pure chaos?  My guess is that it would lean heavily towards the latter; in fact, many companies are opting to settle out of court rather than deal with the resourcing and financial hardships which come from the process of e-discovery.  Why? Because companies are sitting on huge piles of data; sure, much of it is relevant business information, but I’d wager that a large percentage is ROT (redundant, outdated, and trivial). This type of data comes from the many versions of files created but never deleted, documents from employees who have long since left the company and are no longer useful, and the myriad of files which were once useful but have long since passed their shelf life.  E-discovery may be one of the larger liabilities associated to your data, but there are certainly other immediate realities to consider as well. First, while storage may be cheaper by the GB than it was in days gone by, we need masses more of it than we ever did, increasing capital and operational costs to IT. Additionally, if you have a mountain of data, it is easy for the sensitive information to get buried, increasing the potential exposure risk should your data be breached.  So how much are we really talking about? Well, Gartner estimates that about 70% of your unstructured data is ROT. This really creates two buckets of problems –…

Photo : Libby Robinson September 02, 2016